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Are your fences up to the law?

Paul Goeringer for Progressive Forage Published on 30 January 2019
Wire fencing

As we enter winter and begin to think about spring, it may be the time of year when many of you check fence conditions to keep livestock in or out of neighboring fields.

When checking fences, you should often consider: Does the fence condition meet legal requirements? Fencing law varies among the states, but landowners should review their state’s fence statutes to determine what is explicitly allowed. In a few states, landowners should also check county codes to learn if the county’s requirements are more stringent than the state’s.

The historical view in the U.S. was a fenced-in standard, where livestock owners had to fence in livestock to prevent trespassing on neighboring pastures. With the fenced-in view, the livestock owner was responsible for all the cost of fencing. In the Western states where properties are often larger, the fenced-out view has replaced the fenced-in view, making it a property owner’s responsibility to construct fences to prevent trespassing livestock from entering and damaging property.

In fenced-in states, livestock owners must build fences which meet the standards in the state law (if any). In Kentucky, for example, a fence needs to be built to the following standards: “four (4) feet high, so close that cattle cannot creep through, made of rails, or plank, or wire and plank, or iron, or hedge, or stone or brick” (Ky Rev. Stat. § 256.010).

Many state laws specify how tall the fence should be and potentially how far apart posts should be set to be legal. Fences in these states must be in good shape and meet the required standards.

In fenced-in states, typically a livestock owner is liable for damages to neighboring properties when livestock escape through fences in bad repair. When fences are in good repair, livestock owners will owe damages only when negligence is shown. For example, were gates routinely left open, did the livestock owner know the livestock needed stronger enclosures to prevent escape, or had the livestock escaped and the owner failed to get them back in? A court may consider these and other factors to find fault.

In fenced-out states, those wanting to keep livestock off their property must make sure their fence is constructed up to state standards. For example, in Texas, fences around cultivated land need to be at least 5 feet high and prevent hogs from passing through (Tex. Stat. § 143.001). A landowner with a broken fence in Texas could potentially not be able to get damages from the escaping livestock’s owner. If the fence is in good shape, then a livestock owner may not be liable for damages caused by the landowner’s negligence.

In many states today, state laws may require neighboring landowners to split the cost for a partition fence: a fence used to separate two properties. In Oklahoma and Kansas, for example, laws in both states require property owners to split the cost of a partition fence 50-50.

If neighboring landowners cannot agree on the cost of the fence, then both states’ laws have processes in place to appoint fence viewers who will determine what a reasonable fence dividing the two properties would cost. Many states have similar processes in place for splitting the cost of partition fences and for settling disputes before going to court. Producers should pay attention to these processes.

After the partition fence is built, a majority of states may also have a process in place for splitting maintenance costs. Similar to sharing costs when building a partition fence, neighbors often share expenses for maintaining the partition fence. In some states, neighbors may traditionally handle this by splitting the fence in half and each neighbor maintaining their half.

Fencing law requires a landowner to check the respective state statutes to determine what the state law requires in a fence to meet the legal definition. Livestock and landowners should check state statutes to learn if the state follows the fenced-in or fenced-out view. Landowners also need to determine how building and maintaining a partition fence are handled.  end mark

This is not legal advice.

Paul Goeringer
  • Paul Goeringer

  • Extension Legal Specialist
  • University of Maryland
  • Email Paul Goeringer